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Souvereignty

Jean Terrel

1Bodin made of sovereignty the principle that unifies each political society for the whole length of its history. The concept was then often used: in autonomous manner (Filmer), or as an element of a system joining together natural law, contract and sovereignty (Hobbes, Pufendorf). He also provoked opposition, whether because natural law and sovereignty did not go well together (Locke) or because indivisible sovereignty was opposed to a sharing of powers between several distinct venues (republican praise for the mixed regime). Montesquieu makes limited use of the vocabulary of sovereignty and presents no explicit theory of it. Does he remain, in respect to it, the heir of Bodin (M. A. Mosher)? Ought we, on the contrary, take seriously his “semi-silence” (Jean Ehrard) and judge that sovereignty is subjected with him to a veritable eclipse (Catherine Larrère)?

2In the Persian Letters, Montesquieu takes care not to speak of the sovereignty of Rome, whereas the Italian princes of the day were the “martyrs of sovereignty” (LP, 99 [102]), “whose only attribute of sovereignty was vain politics” (LP, 93 [96]), consisting, for “a little sovereign”, in maintaining a precarious existence playing on the mutual jealousy of two large states (EL, VIII, 16). This is to question one feature of Bodinian sovereignty, the fact that it is a juridical reality independent of the number of subjects, the regime and the effective power of the state, so that three families can suffice to make a republic (Les Six Livres de la République [The Six Books of the Commonwealth], I, 2, p. 48). If princes who have any real power are sovereigns, it is not because they incarnate, by succeeding to the throne, any single abstract reality. This theme is by derision reserved to states which the caprice of despots deprives of all stable juridical structure: since the princes of Asia hide, “this invisible power that governs is always the same for the people. Although ten kings, whom he knows only by name, have successively slaughtered each other, it feels no difference; it is as if it were governed by successive spirits” (“cette puissance invisible qui gouverne est toujours la même pour le peuple. Quoique dix rois, qu’il ne connaît que de nom, se soient égorgés l’un après l’autre, il ne sent aucune différence ; c’est comme s’il avait été gouverné successivement par des esprits”, LP, 100 [103]).

3At this date, only sultans and kings were called sovereigns. With respect to republics and the English monarchy, the sovereign was absent from the letter of the text. There can be no sovereign in a collective instance (republic), or a regime where power is equally shared by the people and the prince. Such sharing – which the republican tradition called a mixed regime and the theoreticians of sovereignty judged impossible – defined pure monarchy (LP, C99 [102]), an unstable regime where it is difficult to know, as in England, whether an attack on the sovereign, the crime of lese-majesty, consisted for the people in making war on the king or for the king in making war on the people (LP, 101 [104]). In the French regime, the king was the sovereign because the balance of powers leaned his way. Going all the way in this direction, you have the regime of the Persians, “among whom functions and dignities are merely attributes of the Sovereign’s fancy” (LP, 37 [39]). Impure monarchies, which incline toward despotism, have been halted midway: if in France “the sovereign’s soul is a mould that gives shape to all the others” (LP, 96 [99]), if Louis XIV “does not think the sovereign grandeur should be constrained in the distribution of his favors” (LP, 35 [37]), the kings cannot, by their own impetus, take the life of one of their subjects (LP, 99 [102]), and they are barred by honor, “the sacred treasure of the nation, and the only one of which the sovereign is not the master” (LP, 87 [89}).

4Considerations on the Romans [Romains] continues to ignore sovereignty with respect to the relationship of a free republic to its citizens: the Roman people is sovereign only over all the other peoples (XVII, OC, t. II, p. 226), so that the right of bourgeoisie among the Romans was the right “of universal sovereignty” (IX, p. 155). Republican power, to become “sovereign power”, had to be confiscated by Caesar, “arms in hand” (XI, p. 168). When the armies make and undo emperors, the empire becomes “a sort of irregular republic, such more or less as the aristocracy of Algiers, where the militia has the sovereign power, makes and undoes a magistrate who is called the dey” (“une espèce de république irrégulière, telle à peu près que l’aristocratie d’Alger, où la milice qui a la puissance souveraine, fait et défait un magistrat qu’on appelle le dey”, XVI, p. 219-220).

5Up to Romains, sovereignty was not, as in Bodin, the form of unity and identity of just any state, it was imperial and despotic. For it to exist in a monarchy, the balance of powers had to lean on the side of the king threatening, if care were not taken, to become a despot. From this standpoint, L’Esprit des lois marks a break: analyzing the nature of each government, book II reserves sovereign power to the republic: the king “governs” and the despot “carries everything along with his will and caprices” (EL, II, 1). Yet the exposé on principles opens with the attribution to the prince, in the monarchical government, of sovereign power (EL, III, 2); one chapter deals with “recompenses which the sovereign gives” (EL, V, 18), another examines “in which government the sovereign can be judge” (EL, VI, 5). Is this to admit an invariable of sovereignty, with, in democracy, the people as monarch (EL, II, 2) and, in governments by a single person, a power which is the same although the manners of obeying differ (EL, III, 10)?

6In fact, the political invariable is the government and not sovereignty: “a society cannot subsist without a government”, so that “the combination of all the individual forces […] forms […] the political state”. What is placed in the hands of a single person or of several is the “general force” (EL, I, 3) and not the summa potestas present in the text of

7Gravina who is Montesquieu’s inspiration. In this way one does without sovereignty, so that “three kinds of government” will be classified (EL, II, 1) and not three kinds of sovereignty. The people “has the sovereign power” and is not said to “govern”: democracy is not the direct government of the people. The despot “carries everything along with his will”, which is not to govern. The monarch alone “governs” without being for the moment sovereign.

8In a democracy, the people is the monarch (EL, II, 2). Is this a roundabout way to get back to the Bodinian invariable? In fact the comparison has its limits: unlike the monarch, the people does not govern; it is only by legislating and naming one’s ministers and counselors – “in some respects” – that it is the monarch. when the monarch will have the sovereign power (EL, III, 2), it will not be in the same capacity as the people in a democracy.

9In a democracy, the first character of the sovereign power is to be tributary to the laws that regulate “how, by whom, about what, to whom, suffrage is to be granted” : the suffrage of the people is its will, or “the will of the sovereign is the sovereign itself” (EL, II, 2). These laws are “fundamental”, which prevents the will from tipping into arbitrariness. In the second place, the people has the sovereign power because it does alone whatever it can do (for example, legislate) and it chooses those to whom it must entrust part of its authority: the supreme power is not divided; through the magistrates and councils among which it is portioned out, it is always the sovereign’s authority that is being exerted. For Bodin and Hobbes, what was manifest in a democracy had also to be recognized for kings, which was the absolute character of sovereignty. Montesquieu goes in the opposite direction: if all the authority of the people is transferred to one man, the end result is despotism. In a monarchy, “the laws have provided for the constitution, or adapted themselves to it; the principle of the government halts the monarch; but in a republic where a citizen obtains an exorbitant power, the abuse of that power is greater, because the laws, which have not foreseen it, have done nothing to prevent it”(EL, II, 3). According to Romains, to which generally a note later styled “exorbitant” refers, “there is no more absolute authority than that of the prince who follows a republic, since he finds himself with all the power of the people that was unable to limit itself” (“il n’y a point d’autorité plus absolue que celle du prince qui succède à la république, car il se trouve avoir toute la puissance du peuple qui n’avait pu se limiter lui-même […]”, XV, p. 205) and the dignity of the emperors was “an amalgam of all the Roman magistracies” (XVI, p. 213). To reserve sovereignty provisionally to the republic is to show that the other governments cannot combine the two characters of sovereign power held by a people. In a monarchy, there are laws that enable one to see “which one is the monarch”, but also “in what manner he must govern”: the nature of this government is “that the prince have the sovereign power, but that he exercise it according to the established laws” (EL, III, 2). This but indicates that it is not the same power which is recognized to the people and to the king. To be sure, the king is “the source of all political and civil power”, the intermediate powers being “subordinate and dependent” (EL, II, 4): by singling out such a formula, one can think of Bodin, for whom absolute sovereignty is compatible with fundamental laws. Yet it concerns only the political and civil power: there is a power of the clergy, “dangerous for a republic, as much so as it is suited to a monarchy” and these two powers (civil and clerical) are recognized as independent (EL, II, 4). If on the contrary a single man is given all the authority that the people exercises directly or by proxies, the result is a state without a juridical structure or legitimacy: in the absence of a fundamental law to designate the sovereign, no one is “sovereign by right” (EL, V, 14), there is only a de facto sovereign, a power apparently unlimited and in reality very fragile.

10Montesquieu has good reasons for putting off the moment when he says of the monarch that he has the sovereign power. If we set aside the intermediary powers in a French-style monarchy, the general definition of monarchy applies to the English king who governs by fixed and established laws and is never designated as sovereign. On the other hand, the king of France is not the equivalent of the people of democracies. He governs directly and has sovereignty only in certain respects: there exist in society powers that are not dependent on him.

11By inscribing the sovereign in the definition of the republic, Montesquieu distances himself from the royalists who reserve sovereignty to the monarchy and also, it seems, from republicans who, in the name of the mixed regime, deny the sovereign power that exists in a republic. In a passage of Mes Pensées transcribed in 1748-1750 but not destined for publication, the English constitution was “a mixed monarchy, as Lacedaemon […] was a mixed arisocracy” and Rome “a mixed democracy” (Pensées, no. 1744). In L’Esprit des lois, this reference is absent. Is this again equivalent to saying Bodin was right? That would be forgetting that the analysis of the distribution of powers eliminates all reference to sovereignty (EL, XI, 6). Sovereignty cannot be found (in 1748 as in 1721) in the nation “where the republic hides under the form of monarchy (EL, V, 19). It is impossible to judge that the people are sovereign, given “the impotent efforts of the English to establish democracy for themselves”. They lacked the altruistic passion for the public good (EL, III, 3). Also lacking was that fundamental law of popular sovereignty, the exercise of the legislative power by the people as a body, “impossible in large states” and “subject to many drawbacks in the small ones” (EL, XI, 6). It is just as vain to attribute sovereignty to the king. The style of an arbitrary power – a legacy of the extreme point of servitude reached when the intermediary powers were taken away and the nobility degraded without the people yet feeling its power – is only the monarchical form (that of an absolute government) that conceals the republic or rather the base of a free government (EL, XIX, 27).

12The Pensées go from Antiquity to England, from the mixed regime to the English regime. In L’Esprit des lois, the movement is the reverse: beginning with the analysis of the modern moderate government, we return to the Greeks “who did not imagine the true distribution of the three powers in the government by one person; they only imagined it in a government by several […]” (EL, XI, 11): the politeia, the mixed regime described by Aristotle (Politics, IV, 8), is the antique form of the modern moderate government, of which the Roman republic is the privileged example – the one which, in book II, illustrated all the sovereign power held by the people. With one exception, sovereignty disappears: the Senate had the power “to remove, so to speak, the republic from the hands of the people, by the creation of a dictator, before whom the sovereign lowered its head […]” (EL, XI, 16). The sovereign appears only to submit!

13Sovereignty was first republican (book II). The despot is only a de facto sovereign. In a French-style monarchy, the prince is not at the origin of all the powers; in England, the sovereign cannot be located, or in any case it is hard to detect; in the ancient democracies which avoided the trap of popular despotism, the sovereign power (EL, II) tended to fade away behind the play that distributed powers (EL, XI).

14The federal solution separates the two sides (internal and external) of sovereignty. “The closer the confederation comes to democracy, the more perfect it is” (dossier of L’Esprit des lois, Ms. 2506/6, OC, t. IV, p. 770). Now the union is democratic when each state can break it off because it has preserved its independence and sovereignty: common decisions thus require unanimity or at least the possibility for the minority state to leave the association. For the federation to exert internal sovereignty over its members, they would have to accept “the sovereign imperfection” of a monarchical constitution allowing the dominant state to accuse the members of the confederation who wished to break up the union of lese-majesty. Like a nation the constitution of which had political freedom as its direct object (EL, XI, 5), the democratic union would thus accomplish a miracle in a new way (at least for a classical theoretician of sovereignty): a sovereign state in which the sovereign is invisible.

15Locke had attempted to do without sovereignty (J. Terrel): if God alone is fully sovereign and men are naturally free and equal, one should speak, in any state, of supreme powers (that of the community, exterior to the institutions, and that of the legislative venue which the latter is supposed to have instituted). To conflate supremacy and sovereignty is tantamount to conflating political power and despotic power that one exerts over naturally inferior beings. Political power is not sovereign, except when it goes to war against men who banish themselves from humanity by violating natural equality and thus merit the despotic treatment that men inflict on harmful inferior animals (death or punitive slavery). Wary of sovereignty, Locke always places himself on the terrain of a general theory of supremacy. This is not Montesquieu’s attitude: sovereignty disappears or appears, in different degrees, according to the particularities of each regime; there subsists a minimal invariable, non-normative, the existence in any state of a union of individual forces, in other words a government.